Anderson v. City of Milwaukee

• Decision Date: 30 January 1996
• Docket Number: Nos. 94-1030 and 94-2162,s. 94-1030 and 94-2162
• Citation: 199 Wis.2d 479,544 N.W.2d 630
• Parties: Shirley D. ANDERSON, Plaintiff-Respondent, v. CITY OF MILWAUKEE, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 630

544 N.W.2d 630

199 Wis.2d 479

Shirley D. ANDERSON, Plaintiff-Respondent, v. CITY OF MILWAUKEE, Defendant-Appellant. ^d

Nos. 94-1030 and 94-2162.

Court of Appeals of Wisconsin.

Submitted on Briefs April 4, 1995.

Opinion Released Jan. 30, 1996.

Opinion Filed Jan. 30, 1996.

For the defendant-appellant the cause was submitted on the briefs of Grant F. Langley, City Attorney, and Michael G. Tobin, Assistant City Attorney.

For the plaintiff-respondent the cause was submitted on the briefs of Thomas M. Pyper of Whyte, Hirschboeck, Dudek, S.C., of Madison, and Gregory A. Fedders of Whyte, Hirschboeck, Dudek, S.C., of Milwaukee.

Appeal from a judgment and an order of the circuit court for Milwaukee County: Robert J. Miech, Reserve Judge, and Jacqueline D. Schellinger, Judge. Affirmed.

Before SULLIVAN, FINE and SCHUDSON, JJ.

SULLIVAN, Judge.

The City of Milwaukee appeals from a judgment, after a jury trial, awarding Shirley D. Anderson $443,600.87 in compensatory damages arising out of her negligence action against the City. The City also appeals from an order denying its post-verdict motion for relief under § 806.07(1)(d) and (h), STATS. ¹

The City raises several issues for our review, the primary of which is whether the City can waive the $50,000 municipal damage limitation under § 893.80(3), STATS., by failing to plead the limitation as an affirmative defense and by failing to specifically raise the statutory damage limitation in motions after the verdict. The City also challenges the trial court's denial of its motion for directed verdict, arguing that the City was immune from liability pursuant to § 893.80(4), STATS., on Anderson's claim of negligent design and construction of a walkway. Finally, the City argues that the trial court erroneously exercised its discretion by failing to grant the City's motion for relief from judgment pursuant to § 806.07, STATS., and that the interests of justice require this court to grant discretionary reversal pursuant to § 752.35, STATS., and order the trial court to modify the damage award to comply with § 893.80(3), STATS.

We conclude that: the $50,000 damage limitation is waivable by the City; the City by its conduct did in fact waive the damage limitation; the City was subject to liability under the safe-place statute; the trial court did not erroneously exercise its discretion in denying the City's § 806.07 motion; and the City is not entitled to discretionary reversal under § 752.35, STATS. Accordingly, we affirm both the judgment and the order.

I. BACKGROUND.

On July 8, 1989, Anderson was shopping at the Fondy's Farmer's Market, which was allegedly owned, constructed, and operated by the City of Milwaukee. Anderson tripped and fell on a raised line of bricks on the market's walkway path, thereby suffering a transverse fracture of her right knee. In July 1990, Anderson commenced a negligence action against the City alleging inter alia that the City violated the Wisconsin Safe-Place Statute, see § 101.11, STATS., and that the City: negligently designed, constructed, and maintained the walkway; negligently failed to install safety devices and warnings about the raised line of bricks; and negligently failed "to take proper steps to avoid dangerous situations" at the walkway. Anderson further alleged that the negligence and safe-place statute violations constituted breaches of "ministerial duties" on the part of the City.

The City in its answer denied liability and pleaded as affirmative defenses: (1) that the injuries suffered by Anderson "were sustained and incurred solely and proximately as the result of her own carelessness and negligence and through no fault or negligence on the part of the ... City of Milwaukee;" and (2) that Anderson "failed to mitigate her damages." The City did not raise the § 893.80(3), STATS., municipal damage limitation as an affirmative defense, nor did it raise the limitation in any other pre-trial motion.

In January 1991, Anderson filed an offer of settlement pursuant to § 807.01(3), STATS., by which she agreed to settle her claim with the City for $25,000. The City refused the offer, and the case proceeded to trial in the summer of 1993.

During the course of the trial, the City moved for a directed verdict in favor of the City, in part, on the grounds that the negligent design and construction portion of Anderson's suit was barred by § 893.80(4), STATS., which the City argued provided it with immunity for discretionary decisions concerning the design of the market's walkway. The trial court denied the motion. The City then objected to the special verdict question submitted to the jury: "Was the City of Milwaukee negligent by failing to design, construct, maintain or repair the Fondy Mall walkway as safe as the nature of the walkway would reasonably permit?" The trial court submitted the question to the jury. On July 2, 1993, the jury found the City negligent and ordered compensatory damages in the amount of $443,600.87.

On July 22, 1993, the City filed a motion after verdict seeking: (1) changes to the jury's answers to the special verdict question finding the City negligent; (2) changes to the damage award "to such lesser sum which will reflect an appropriate sum of money which under the evidence constitutes the value of the plaintiff's past and future pain, suffering, disability and loss of enjoyment;" or, in the alternative, (3) a new trial because the verdict was perverse, contrary to the law, and contrary to the evidence. The City never contacted the trial court to ask for a hearing on its motions after verdict and the ninety-day period for deciding motions after verdict expired without the trial court rendering a decision on the City's motion. See §§ 805.14(5) and 805.16(3), STATS.

On November 16, 1993, Anderson submitted a proposed judgment to the trial court, to which the City objected. On December 3, 1993, by a letter to the trial court, the City for the first time raised the $50,000 damage limitation under § 893.80(3), STATS., and included a proposed judgment reduced to the $50,000 statutory cap. The trial court signed Anderson's proposed judgment on March 18, 1994, awarding Anderson $443,600.87 in damages, plus costs and interest, for a total award of $618,492.55. The City appealed from this judgment in April 1994. The City, however, also filed a motion with the trial court for relief from judgment pursuant to § 806.07, STATS., calling for the trial court to exercise its equitable powers to reduce the award to the $50,000 statutory cap. The trial court concluded that the damage cap was waivable, and that the City was not entitled to equitable relief because it failed to raise the issue timely. The trial court then issued an order denying the City's motion, from which the City also appealed. Both appeals were later consolidated by this court.

II. § 893.80(3), STATS

., AND WAIVER.

The City first contends that § 893.80(3), STATS., requires that a damage award against a municipality be limited to $50,000, plus costs. Further, the City argues that "[a] judgment in excess of the statutory limitation is void as a matter of law." Accordingly, the City seeks a reversal and a reduction of the damage award in this case to $50,000 plus costs. We reject the City's argument.

Because the issue raised by the City requires us to interpret and apply a statute to undisputed facts, it presents a question of law. See Dungan v. County of Pierce, 170 Wis.2d 89, 93, 486 N.W.2d 579, 581 (Ct.App.1992). We review issues of law without any deference to the conclusions of the trial court. See Old Republic Sur. Co. v. Erlien, 190 Wis.2d 400, 411, 527 N.W.2d 389, 392 (Ct.App.1994). Section 893.80(3), STATS., provides:

(3) The amount recoverable by any person for any damages, injuries or death in any action founded on tort against any ... political corporation, governmental subdivision or agency thereof and against their officers, officials, agents or employes for acts done in their official capacity or in the course of their agency or employment, whether proceeded against jointly or severally, shall not exceed $50,000.... No punitive damages may be allowed or recoverable in any such action under this subsection.

Based on its reading of the statute, the City argues that a judgment in excess of the statutory limit is "void" because § 893.80(3) limits the power of the court to enter a judgment in excess of the statutory cap; therefore, the City argues that the statutory limit cannot be waived. We reject the City's reading of § 893.80(3), STATS. The case law and legislative history of § 893.80(3), STATS., establish that the damage limitation is waivable if the municipality or other governmental entity fails to raise the damage limitation as an affirmative defense.

Prior to 1962, municipal governments in Wisconsin were insulated from tort liability under the principal of municipal tort immunity. See Hayes v. City of Oshkosh, 33 Wis. 314, 318 (1873) (adopting principal of municipal tort immunity in Wisconsin), overruled by Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962). Commentators posit that this principal originated from the English Common Law doctrine of sovereign immunity, which "was premised on the dual ideology that 'the King can do no wrong,' and that it would be inconsistent with his sovereignty to subject him to suit in his own courts." Michael J. Waldspurger, Comment, Ameliorating the Harsh Effects of Wisconsin's Municipal Notice of Claim Statute, 77 MARQ.L.REV. 610, 611 (1994). ²

In 1962, the Wisconsin Supreme Court in Holytz abrogated the principal of municipal tort immunity in Wisconsin, declaring: "[S]o far as governmental responsibility for torts is concerned, the rule is liability--the exception is immunity." Holytz, 17 Wis.2d at 39, 115 N.W.2d at 625. In reversing nearly ninety years of precedent, the court reasoned that the principle of governmental immunity in Wisconsin was a court-made...